Instructing psychiatrists in the Court of Protection
Produced in partnership with Alex Ruck Keene and Michelle Pratley of 39 Essex Chambers
Instructing psychiatrists in the Court of Protection

The following Private Client guidance note Produced in partnership with Alex Ruck Keene and Michelle Pratley of 39 Essex Chambers provides comprehensive and up to date legal information covering:

  • Instructing psychiatrists in the Court of Protection
  • When is it necessary to instruct a psychiatrist?
  • Instructing a psychiatrist prior to proceedings in the Court of Protection
  • Instructing psychiatrists in proceedings in the Court of Protection
  • Parties to the instruction
  • Instructing a psychiatrist
  • The expert’s report
  • Section 49 reports

Produced in partnership with the Legal Action Group, publishers of the Court of Protection Handbook from which parts of this Practice Note are taken.

When is it necessary to instruct a psychiatrist?

Psychiatrists are frequently asked to assess the protected person (P)’s capacity to make decisions that are the subject of the proceedings in the Court of Protection. Psychiatrists are also occasionally asked to give their view about P’s best interests, but this is increasingly rare.

For further information on mental capacity, see Practice Notes: Mental capacity—an introduction and Mental capacity—assessments and tests.

It is important to note at the outset that it is not always necessary to instruct a psychiatrist to assess capacity. Capacity assessments may be carried out by a raft of professionals, including general practitioners (GPs), social workers and speech and language therapists. The Court of Protection may also appoint a Special Visitor to assess P’s capacity.

In some cases, especially where P’s capacity is borderline or fluctuating, it can avoid considerable delay and expense to instruct a psychiatrist to assess P’s capacity. This is particularly the case where the psychiatrist is experienced in undertaking capacity assessments and has particular expertise in the relevant field, such as working with older people or people with learning difficulties.

A judge will almost always give great weight to expert evidence from a psychiatrist, but